Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
These appeals arise out of four separate actions consolidated for trial, all involving a collision between a taxicab and an automobile near the intersection of Broad and New Streets, Newark, at about 1:45 A.M. on April 23, 1958.
The cab driver was Charles S. Niewinski, operating the vehicle under lease arrangement with David Goldfarb, trading as Twentieth Century Cab Co. He was driving north on Broad Street, in rainy weather, with two passengers, Mason and Henshaw, and was about to make, or had begun, a left turn into New Street, when the cab was struck by an automobile which was being driven south on Broad Street, operated by Edward Ogborne, employed by Apex Signal Service Company. All four individuals sustained personal injuries in the accident.
There was testimony at the trial that before the collision the cab had veered to the southbound lanes of Broad Street between 10 and 40 feet south of the New Street intersection; also that the driver had just turned his head toward the passengers as though to join in a discussion going on between them. Niewinski testified that the steering wheel "snapped" and he lost control of the car.
The following actions were instituted in various courts: (a) by Mason against Niewinski, and against Goldfarb purportedly as the latter's employer, on the theory of Niewinski's negligence in the operation of the cab and Goldfarb's responsibility on the basis of respondeat superior , as well as against Ogborne and his employer, the Apex Company, for Ogborne's negligence; (b) by Henshaw against Niewinski, Goldfarb and Ogborne on the same theory as Mason's action; (c) by Ogborne against Niewinski and Goldfarb on the same theory as the Mason action; and (d) by Niewinski against Goldfarb and one Edwin Miller, doing business as D & G Auto Repair, for negligence in the repair of the "front end steering" of the cab, as a result of which the "steering mechanism broke" while plaintiff was operating the vehicle, causing a loss of control and the ensuing accident. The latter complaint was ordered amended in the pretrial order "to indicate Goldfarb is being sued individually as well as d/b/a." However, no amended complaint was ever filed stating the precise theory on which Goldfarb was being charged individually.
The pretrial order does not alter the theory of the Mason and Henshaw actions. (The Ogborne action was not pretried.) In respect of the Niewinski action, there is an amplification of facts in the pretrial order, but no essential change of the theory of negligent repairs insofar as Goldfarb and Miller as D & G Auto Repair is concerned. As to Goldfarb, individually, the order provides: "D. Goldfarb individ. was under a duty to exercise reasonable care to provide safe repair and maintenance of the said vehicle by providing for competent workmen or independent contractor,
by furnishing safe parts and materials, and by making reasonable inspections to assure the safety of persons who would be riding in the vehicle." It is then recited, inter alia , that "D & G" repaired the "front end steering" of the cab the day the cab was taken out by Niewinski and that "[t]he said repairs had been negligently made and Defs knew or should have known that the vehicle was not safe and that the steering mechanism was so poorly assembled as to be likely to break at any time." It is to be specifically noted that, although the lease agreement is mentioned in the order, no articulation of a theory of liability directly thereunder, e.g. , as upon a warranty or covenant, as distinguished from negligence in the making of repairs, is expressed in the part of the order which purports to express the nature of the defendant's liability. Under paragraph 7, where the "legal issues raised by the pleadings as amended or to be amended which are to be determined at the trial" are required to be specified, R.R. 4:29-1(b)(7), and see Civil Procedure Form No. 29, there is set forth:
"7. Negligence, contrib. negligence, assumption of risk, acts of third party, agency, duty under contract of taxi rental, damages, notice of defect, liability of parties." (Emphasis added)
But the comprehensive description of the "consolidated actions" in paragraph 1 of the pretrial order is: "3 negligence suits arising out of an auto accident, alleging negligence in operation and repair of motor vehicle."
At the trial Niewinski was represented by his personal counsel in prosecution of his own action, but by an attorney of the insurance carrier for Goldfarb in his status as co-defendant with Goldfarb in the other three actions. (Miller defaulted in pleading, but testified as a witness for Goldfarb.) Goldfarb was represented by personal counsel in defense of the Niewinski claim (as to which the carrier had disclaimed) and by the insurance counsel in defense of the other actions. Ogborne also had separate counsel, one
representing him as plaintiff and the other as defendant. The obvious possibilities for confusion and conflicting representation, enhanced by the inadequacy of the pleadings and pretrial order in defining the issues, bore their promised fruit.
After the court's charge to the jury, to which further reference will be made hereinafter, the jury returned unanimous verdicts in the Mason, Henshaw, Niewinski and Ogborne actions, respectively, as follows:
"Mr. Foreman: For item 1 we blame the accident on the faulty cab. We find against Goldfarb and as the result, Apex Signal Company and Ogborne in the clear. We find Charles Niewinski not negligent and we are awarding Mr. Mason the sum of $2,000.00.
For item 2, the faulty cab is again involved. Ogborne is in the clear and Charles Niewinski not negligent and we are allowing for Henshaw the sum of $1,500.00.
For item 3, we find that Charles Niewinski has a case against Mr. Goldfarb and we are awarding Mr. Niewinski $15,000.00.
For item 4, we find Mr. Charles Niewinski in the clear and that makes the case of Ogborne against Goldfarb, and we are awarding Mr. Ogborne $2,000.00."
The trial judge then molded the verdict as follows:
"* * * you find in favor of William H. Mason, against David Goldfarb and assess the damages at $2,000.00. I will mold your verdict to read a verdict in favor of Alfonso Henshaw against David Goldfarb in the sum of $1,500.00. I will mold the third verdict, which you rendered in favor of Charles Niewinski against David Goldfarb and assess damages at $15,000.00, and I will mold the verdict ...